Two Hundred and Eleventh Day:
Monday, 26th August, 1946 [Page 132]
An organization could only be declared criminal, if:
2. all members knew these purposes and expedients and
3. all members were conscious of the fact that these
purposes were illegal or unjust.
2. a factual one, whether the necessary elements of such
condemnation can be established at all for all members of
the SD and whether a trial of this kind can be held at
all.
By this the authors of the Charter apparently wished to
transfer the judge's right of examination to the
International Military Tribunal with regard to Article 9 -
and I expressly emphasize, in order to avoid any
misunderstandings - only with regard to Article 9, because
in other respects the Charter is a mandatory rule. The
International Military Tribunal should examine Article 9 to
determine whether this rule is a further development of the
legal concepts of International Law and national laws, or
whether it is in contradiction to these. The fact that
Article 9 is a rule previously unknown in law should
especially favour such an intention. The question as to
whether a formal law is in contradiction to other laws,
cannot be immediately investigated when the law is issued.
This can only be determined in the course of the practical
application of the law and after research by scholars.
English constitutional law with its special concept of the
constitution does not recognize the judge's right of
examination. The Union of the Soviet Socialist
[Page 133]
The courts of the United States have to compare the laws
which have been issued with the constitution, and to
discover the true intentions of both.
I believe that the international community of nations
approaches the federal system of the United States, and that
therefore the International Military Tribunal is justified
in examining the relationship of Article 9 of the Statute to
the generally recognized rules of International Law and also
the laws of individual nations which, according to the
statements of Justice Jackson, are likewise to form the
legal foundation for the decision.
Concerning Article 9 of the Charter, it must be added that
it is a precept unknown to the previous laws. It can
obviously be presumed, and undoubtedly needs no further
explanation, that the nations which promulgated the Charter
wanted to develop further the basic concepts of the
prevailing International Law and bring it into a legal form,
and that in doing so they completely lacked any intention of
placing themselves in opposition to the rules of
International Law.
All written law, however, requires careful and scholarly
examination and revision so that a reasonable application in
practice will be possible. Only in this way will the courts
be placed in a position to reach verdicts Which are really
in accordance with the facts.
The International Military Tribunal, therefore, on the basis
of the judge's right of examination to which it is entitled,
will have to examine the relationship of Article 9 of the
Charter with the general basic legal principles of
International Law and the national laws of civilized
nations.
In this connection we have to start from the legal
significance of the assertion, permissible according to
Article 9 of the Charter, that an organization can be
criminal.
Article 9 varies basically from the Corporate Penal Law
(Verbandsstrafrecht), as it has been introduced, for
example, into English law by Section 2 of the Interpretation
Act of 1889.
Punishment according to the Corporate Penal Law
(Verbandsstrafrecht) is directed at the organization.
According to Article 9, the sentence can no longer affect
the organizations because the latter have been dissolved and
no longer exist. The sentence is rather directed against the
individual members, because the verdict of the Court is the
basis for the subsequent proceedings according to Law No.
10.
Furthermore two important differences must be mentioned:
Article 9 on the other hand deals with major crimes.
Article 9 of the Charter does not mean, accordingly, the
introduction of the Corporate Penal Law into International
Criminal Law.
A number of foreign laws have been quoted by the
prosecution, according to which it should be permissible to
declare an organization criminal: from American law, the law
of 28th June, 1940, and the "California Act"; from English
law the "British India Act, No. 30" of 14th November, 1936;
from French law, the law
[Page 134]
THE PRESIDENT: Dr. Gawlik, I believe you are reading too
rapidly.
DR. GAWLIK: The following German laws were also cited:
2. The law of 22nd March, 1921, RGB1. 1921, p. 235.
3. The law of 21st July, 1922, RGB1. 1922, p. 585.
Non-application of legal procedure against members who are
not accused is nevertheless the decisive factor which
differentiates these laws from Article 9 of the Charter. The
decision according to Article 9 of the Charter is, in
contrast to the laws cited by the prosecution, binding in
the proceedings against the individual members before the
Military Tribunal, and indeed the sentencing of
organizations through the International Military Tribunal
contains not only effective confirmation of the objective
facts in the case, but furthermore an effective confirmation
of guilt for all the members, as well as consciousness of
the violation of the law, i.e., a legal efficacy of a
hitherto completely new significance in penal law.
Therewith Article 9 deals neither with the further
development of corporate law, nor with the sentencing of
individual persons because of their membership in a criminal
community of persons, but with a judgment of the collective
members the organizations, because the essential facts which
form the basis for the later judgments in the proceedings,
according to Law No. 10, have been determined juridically
for the collective members. In the subsequent proceedings,
solely the question of membership is still to be examined.
In other words: We are here concerned with the collective
judgment of all members of the organization.
What is the attitude of International Law scholars toward
the question of collective condemnation?
The majority of the American, English and French
International Law scholars reject collective condemnation as
"arbitrary and contrary to the elementary principles of
justice." (Garner in International Law and World Law, Vol.
I, page 154). The well-known authority on International Law,
Garner, states rightly that collective condemnation, even if
it is applied in the mildest form, necessarily includes tile
punishment of innocent persons. Garner further goes on to
explain that for this reason other just measures would not
have the same effect. The French legal scholars, Bonfils and
de Martens, have condemned the basic principle of collective
punishment in detailed dissertations and expressed the hope
that collective condemnation would disappear altogether.
These statements should be agreed to in their full extent.
In the proceedings against the organizations past crimes are
to be atoned for. In order to achieve this aim, however, the
indirect way of condemning the organizations is not
necessary. This aim can be achieved by instituting
proceedings against individual persons who participated in
these crimes, as was also done in a large number of cases.
On the basis of the general legal principles of
International Law and the national laws of civilized States,
therefore, use should be made of the optional rule of
Article 9, while refraining from declaring the accused
organizations as criminal. The persons responsible for the
crimes can be punished in individual proceedings.
[Page 135]
To do so would appear impossible and not feasible. Even
furnishing proof that all members of the SD were informed of
certain criminal goals would appear impossible. Guilt can
always be established for a person only. All guilt is bound
to a person. If many persons participate in an offence or a
crime the judge must examine the entire group of persons
involved singly, in order to determine guilt, innocence or
complicity in a concrete and well-defined manner.
It seems entirely impossible, however, to determine that all
members were cognizant of the illegality and unrighteousness
of the goals and tasks.
In this connection we must also examine what was to be the
standard for members of the SD to determine whether the
goals or means were illegitimate or unrighteous. According
to the German law in force while the organization was in
existence, these goals and means were permitted, as I shall
show in the section dealing with facts. It may be conceded
that the German legal measures conflicted in part with the
provisions of International Law and that therefore goals and
methods-while not illegal nor wrong according to the law of
the German State-can nevertheless be considered illegitimate
and unrighteous according to the concepts of International
Law. But this is not the decisive point. What counts is
whether the members, that is all the members, recognized the
illegality and unrighteousness of goals and methods which
were legitimate according to German law.
The well-known teacher of International Law, Oppenheim, has
stated that the law cannot demand that an individual be
punished for a deed which he was forced to commit in virtue
of the law.
If the best-known authorities on International Law cannot
agree as to what is right and wrong, can one demand from
ordinary members of the organization that they recognize it?
The capital crimes which were discussed during the trial,
for instance, the annihilation of the Jews, and the inhuman
treatment in the concentration camps, require no discussion
as to right or wrong. The organizations, however, are
charged with a great number of punishable offences, and the
question as to whether
2. furthermore all members knew of the injustice and the
illegality cannot be answered lightly in the affirmative.
A strict examination of these organizations is particularly
necessary because their members were for the most part men
who had no juridical knowledge, and to whom the limitations
of International Law were unknown. I believe that this is
also the opinion of the United States Chief Prosecutor, who
described in his opening speech of 20th November, 1945, how
a soldier assigned to an execution squad could not hold an
investigation as to whether the execution was legally
admissible.
While examining the question concerning the knowledge of the
members as to illegality and injustice, the mistake should
not be made of assuming that the simple members of the
organization had the same knowledge which we now have gained
in this process, on the basis of documents coming from
secret archives.
Particularly in the proceedings against the SD a great
number of secret papers, documents and regulations were
produced, which were only intended for the internal
administration of individual offices. The content of these
papers, therefore, testifies that they had not been brought
to the knowledge of all members but only
[Page 136]
It can, therefore, now be ascertained that a great part of
the evidence produced by the prosecution does not suffice
for the collective condemnation of the members of the SD.
The documents do not even prove that the offenders
themselves were conscious of illegality, because in order to
establish this, one must know the particular circumstances
of the act. And it must still be proved that the members of
the SD:
(b) recognized that the acts were illegal or at least
wrong.
THE PRESIDENT: Would that be a convenient point to break
off?
(The Tribunal adjourned until 27th August, 1946, at 1000 hours.)
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(Part 12 of 12)
1. its purposes or expedients correspond with the facts
of the case as stated in Article 6 of the Charter.
This result gives rise to two further questions:
1. A legal one, whether the condemnation of an
organization can be brought into harmony with the
general rules of International Law and national law;
Before I begin to discuss the legal question I take the
liberty of drawing the attention of the Tribunal to the fact
that the stipulation in Article 9 was not a compulsory rule,
but only an optional one. Even if the conditions are present
for declaring an organization as criminal, the Court can
refrain from doing this. It may be assumed that the
legislators pursued a purpose in having prescribed the
condemnation of the organizations as not compulsory even if
all the conditions for this were fulfilled. It may be
presumed that the legislators who promulgated the Charter
wanted to submit Article 9 to examination under the rules of
International Law.
1. According to the Criminal Code for Organizations, and
especially English Corporate Penal Law, no imprisonment
(Freiheitsstrafe) is permitted.
Article 9 should be, nevertheless, the basis for the
inflicting of prison sentences and even of death sentences
provided for in Law No. 10.
2. According to English Corporate Penal Law, no crimes
and offences can be prosecuted.
If we examine English jurisdiction, we find that
corporations have been condemned only on account of
transgressions, especially on account of neglect of public
obligations, e .g., failure to repair streets or bridges,
although a similar obligation existed blocking a street by a
railway company, or on account of publishing a libel.
1. The decisions of Articles 128, 129 of the German Legal
Code Book of 1871.
In this connection it should be noted that according to all
these laws, only individual persons may be prosecuted and
that in the proceedings against such prosecuted individuals
it can be established that the organization has a criminal
character without this having a legal effect upon the non-
prosecuted members. It can thereby be established in
proceedings against some members of the organization that
the organization pursues aims contrary to law, while in
further proceeding against other members this can be denied.
1. the perpetrators generally and
Particularly where acts and deeds were committed during the
war it is very difficult to decide whether they were
recognized as illegal and unjust. In peace time everybody
knows that he must not kill and that foreign property is
inviolable. These acts are, however, partly justifiable in
war time. The soldier can kill the enemy. The confiscation
of foreign property is permitted under certain
circumstances. The individual who commits the deed and
beyond him the members, have, therefore, only the
consciousness of illegal acts which have been committed
during the war, when they are aware of the limitations which
are set by law.
(a) knew of these acts and
I do not consider it necessary to discuss this question in
the second part of my statement regarding each act with
which the SD was charged, but in my opinion it is sufficient
if I describe the problem in general and leave the
examination in individual cases to the Tribunal. In each
individual case, however, with which the SD is charged and
with each document submitted against the SD, the Tribunal -